Foster, In re, 1

Citation271 Md. 449,318 A.2d 523
Decision Date29 April 1974
Docket NumberNo. 1,1
PartiesIn re Formal Inquiry Concerning Judge Dulany FOSTER. Misc. (Judicial Disabilities)
CourtCourt of Appeals of Maryland

Norman P. Ramsey, Baltimore, for Judge Foster.

Laurence M. Katz, Baltimore, and Richard C. Murray, Towson, for the Commission.

Argued Jan. 14, 1974 before BARNES, SINGLEY, SMITH, DIGGES, LEVINE and ELDRIDGE, JJ., and CHARLES E. ORTH, Jr., Special Judge.

Reargued March 26, 1974 before SINGLEY, SMITH, DIGGES, LEVINE and ELDRIDGE, JJ., and CHARLES E. ORTH, Jr. and JAMES C. MORTON, Jr., Special Judges.

SINGLEY, Judge.

This is the second occasion on which we are called upon to review a report and recommendation of the Commission on Judicial Disabilities (the Commission). The circumstances which led to the adoption of the two constitutional amendments, which first enacted and then amended Maryland Constitution art. IV, §§ 4A, 4B, creating the Commission, are set forth in the opinion of this Court in In re Diener & Broccolino, 268 Md. 659, 662-667, 304 A.2d 587, 589-592 (1973), cert. denied, -- U.S. --, 94 S.Ct. 1586, 39 L.Ed.2d 885 (1974).

Judge Dulany Foster is Chief Judge of the Supreme Bench of Baltimore City, which is comprised of 21 judges who preside in six courts having either general law, equity or criminal jurisdiction, see Constitution, art. IV, § 27; Maryland Code (1974), Courts and Judicial Proceedings Article § 1-503(b).

After widespread publicity in the news media relating to Judge Foster's activity in connection with the purchase and sale of a property known as the Carroll I. Young Farm, located in the City of Westminster (Westminster or the City), Carroll County, Maryland, the Commission was requested by Chief Judge Murphy of this Court-a request in which Judge Foster joined-to conduct a preliminary investigation of the matter, to ascertain whether Judge Foster's involvement in the transaction violated the Maryland Canons and Rules of Judicial Ethics. 1

After a preliminary inquiry in which Judge Foster voluntarily participated, the Commission unanimously 2 voted to institute formal proceedings, charging violations of:

Maryland Canons of Judicial Ethics IV, VII, VIII, XXIII, and XXIV;

Maryland Rules of Judicial Ethics 6, 8, and 13;

and original American Bar Association Canons of Judicial Ethics, Canons 4, 7, 8, 24, and 25.

The factual background of the matter, developed at the hearing before the Commission, is essentially this. In January, 1965, the Carroll Young Farm of about 190 acres was purchased by Jerome J. Gebhart and John A. Luetkemeyer, Sr., for $150,000.00, apparently on the advice of Lawrence Lockwood, a Baltimore real estate broker, who was confident that if the property were held for four or five years, it could be sold at a profit. In August, 1967, Westminster annexed some 1,000 acres of land, including the Young Farm. In September, 1968, Gebhart sold his one-half interest in the Young Farm for approximately $152,000.00 to the trustees of a trust (the McLanahan Trust), created by the will of the late Austin McLanahan, the father of Mrs. Luetkemeyer, Sr. and the grandfather of John A. Luetkemeyer, Jr. In November, 1969, Mr. Luetkemeyer, Sr. conveyed his one-half interest in the Young Farm to the McLanahan Trust for a stated consideration of $152,000.00, or about $1,600.00 per acre.

John A. Luetkemeyer, Jr. testified that at the time the McLanahan Trust acquired title to the entire Young Farm, it had assets of about $1,600,000.00; that the income beneficiaries were his two sisters and himself; that distribution of corpus was about to commence in several years, when his younger sister became 30, and that the Farm, while a suitable investment, was the only nonliquid asset of the trust.

Late in 1969, a decision was reached by the McLanahan Trust to sell the property. By this time, the Farm was within the City limits, water was available and a sewer was planned. The property was brought to Judge Foster's attention by Lockwood, one of the brokers who had participated in the original sale to Gebhart and Mr. Luetkemeyer, Sr. Judge and Mrs. Foster examined the property, reviewed the situation as regards zoning, and learned that the asking price was $2,500.00 per acre. In late December, 1969, the McLanahan Trust agreed to give Judge Foster a one-year purchase option, for which Judge Foster personally paid $1,000.00. Although called an 'agreement of sale,' the option agreement, which was actually signed on 16 February 1970, was entered into between the McLanahan Trust and Wheeler Holding, Inc., a nominee of a Baltimore title company, as agent for Judge Foster.

There was testimony that in October, 1969, prior to Judge Foster's negotiations with the McLanahan Trust, a tract of 45 acres zoned agricultural owned by David Jones, and located across the road from the Young Farm, had been reclassified as R-10,000 from R-7500, except for four and one-half acres which were given commercial zoning.

It was in November or December that a significant conversation took place. Mr. Luetkemeyer, Jr. testified that his family had determined not to develop the property because of their lack of expertise and because of the notoriety which might be involved in an effort to obtain a change in zoning. 3

When asked whether the issue of propriety had been raised with Judge Foster, Mr. Luetkemeyer, Jr. said:

'Well, when I initially met Judge Foster, I asked him why he wished to purchase the land and were there any ethical problems I had to be concerned about. I believe Judge Foster felt that this was outside of his jurisdiction and there were no ethical considerations to worry about.'

Before the option agreement was actually executed, Judge Foster had received a letter dated 21 January 1970 from Joseph H. Hahn, Jr., at the time the Mayor of Westminster. The gist of the letter was that the Planning and Zoning Commission for the City of Westminster (the Planning Commission) was expecting to receive from Judge Foster an application for the rezoning of the Young Farm in time for its regular meeting on 28 January. It would appear that this information may have come from Truman B. Cash, an associate of Lockwood's in Westminster, who had died prior to the hearing.

Judge Foster, who theretofore had not known Mayor Hahn, telephoned him, and asked to be introduced to the members of the Planning Commission by the Mayor. The Mayor did this, and left the meeting. 4 At this meeting, Judge Foster, who was not then or thereafter represented by counsel, requested the reclassification of the Farm in order to permit a density of more than six dwelling units per acre, and a change in zoning boundary lines. Coupled with the request was a proposal to give a 10 acre parcel to the City for the erection of a civic center, a commitment which would seem to have been made earlier by Mr. Luetkemeyer, Sr.

Nearly a year elapsed before there was any significant development, apparently because a comprehensive master plan was being developed by the City until late in 1970. Carroll R. Dell, the City's Director of Planning and Public Works, and Robert E. Lakin, Judge Foster's engineer, came to Judge Foster's chambers in Baltimore with a petition for the rezoning to R-7500 of 76.95 acres of the Young Farm, then zoned agricultural. This was later revised, apparently because the remainder of the tract was already zoned R-10,000, and as filed on 8 December, Judge Foster as the petitioner sought a reclassification of the same area to R-10,000 (which permitted the same density as R-7500), or six dwelling units per acre. The proposal was approved by the Planning Commission on 10 December and was the subject of a public hearing before the Mayor and Common Council on 8 February 1971, which was attended by Judge Foster, who spoke in support of his proposal.

The rezoning was effected by an ordinance enacted on 8 March 1971. By that time the purchase option granted by the McLanahan Trust, which was for one year, if rezoning and installation of sewers had not been accomplished, had expired. Accordingly, Wheeler Holding and the McLanahan Trust entered into an extension agreement on 1 May 1971, increasing the purchase price to $2,650.00 per acre and providing for the payment of taxes and other charges by Wheeler Holding. The agreement, as extended, was to expire 30 days following 1 May 1972.

Commencing in September, 1971, Judge Foster had a series of meetings with Harry L. Whitehead, vice president of Monumental Properties Acquisitions, Inc. (Monumental), looking toward a sale of his interest to Monumental. This culminated in an agreement of 6 December 1971, by which Wheeler Holding agreed to sell Monumental its option at a price of $1,150.00 per acre (this being in addition to the $2,650.00 per acre which Monumental would be required to pay the McLanahan Trust), after deducting 12 acres in computing the price to be paid to Wheeler Holding. Wheeler Holding, as agent for Judge Foster, was to secure the agreement of the McLanahan Trust to accept a five-year mortgage for approximately $357,500.00 as part of the purchase price. The agreement was subject to a number of conditions, among then approval of a planned unit development, permitting the construction of at least 1,130 dwelling units; the installation of permanent sewer facilities and an adequate treatment plant by the City, and a waiver by the City of its customary charge of $650.00 per unit for water and sewer connections.

A second agreement was entered into on the same date between Judge Foster, personally, and Monumental, which provided that upon final approval of the plan to build 1,130 dwelling units, Monumental would convey to Judge Foster 1i acres of the tract, upon payment by him of $31,800.00. As will be pointed out later, this 12 acre tract relates back to Judge Foster's proposal at his first appearance before the Council to give the City 10 acres for the erection of a civic center.

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16 cases
  • Halleck v. Berliner, Civ. No. 76-1985.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 7 Marzo 1977
    ...v. Appellate Division, Second Department, Supreme Court of New York, 265 F.Supp. 455, 458-59 (E.D.N. Y.1967); In re Foster, 271 Md. 449, 471-72, 475-78, 318 A.2d 523 (1974).29 In the case at bar, the Commission's "Notice of Formal Proceedings," stated that plaintiff's alleged conduct would,......
  • In re Gillard, 47309.
    • United States
    • Supreme Court of Minnesota (US)
    • 6 Septiembre 1978
    ...1, 138 Cal.Rptr. 459, 564 P.2d 1 (1977); Nicholson v. Jud. Ret. and Removal Com'n, 562 S.W.2d 306 (Ky.1978); In re Foster, 271 Md. 449, 318 A.2d 523 (1974); In re Nowell, 293 N.C. 235, 237 S.E.2d 246 (1977). The reasoning of the courts is that the general standard of judicial conduct incorp......
  • Larsen, Matter of
    • United States
    • United States State Supreme Court of Pennsylvania
    • 14 Octubre 1992
    .......         AND NOW, this 14th day of October, 1992, after review of the Record and due consideration of the Briefs and Arguments, 1 the Court accepts the Report of the Judicial Inquiry and Review Board submitted by Judge Joseph M. James, Judge Jess Juliante, Judge John T.J. ....         In commenting upon the adoption of the reasonable person standard by the Maryland Court of Appeals in In re Foster, 271 Md. 449, 318 A.2d 524 (1974), Professor Martineau opined: . While such a test is not completely objective, it is better than a totally ......
  • Nowell, In re, 36
    • United States
    • United States State Supreme Court of North Carolina
    • 12 Septiembre 1977
    ...less objective than the reasonable and prudent man test which has been a part of our negligence law for centuries." In re Foster, 271 Md. 449, 476, 318 A.2d 523, 537 (1974). In Sarisohn v. Appellate Division, 265 F.Supp. 455 (D.C.1967), a case in which a section of the New York Constitution......
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2 books & journal articles
  • Court Business
    • United States
    • Colorado Bar Association Colorado Lawyer No. 39-7, July 2010
    • Invalid date
    ...of his name or prestige of his office to aid or advance the welfare of a private business and such conduct warrants censure. In re Foster, 318 A.2d 523 (Md. 1974). Ethics Opinions A judge may not serve as president of a corporation which markets products to correctional facilities. As a com......
  • Court Business
    • United States
    • Colorado Bar Association Colorado Lawyer No. 38-6, June 2009
    • Invalid date
    ...of his name or prestige of his office to aid or advance the welfare of a private business and such conduct warrants censure. In re Foster, 318 A.2d 523 (Md. 1974). Ethics A judge may not serve as president of a corporation which markets products to correctional facilities. As a company offi......

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